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Ord. 0669-3A 06-13-05ORDINANCE NO. 669-3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AMENDING ARTICLE II, RIGHT-OF-WAY MANAGEMENT, OF CHAPTER 26, RIGHTS -OF -WAY, OF THE CITY OF PEARLAND CODE OF ORDINANCES, AS IT MAY HAVE BEEN, FROM TIME TO TIME, AMENDED; PROVIDING A PENALTY FOR VIOLATION; HAVING A SAVINGS CLAUSE, A SEVERABILITY CLAUSE, AND A REPEALER CLAUSE; PROVIDING FOR CODIFICATION, PUBLICATION AND AN EFFECTIVE DATE; AND DECLARING AN EMERGENCY AS THE NEED TO REGULATE THE CITY=S RIGHTS -OF -WAY INURES TO THE BENEFIT OF THE PUBLIC AND, THEREFORE, BEARS DIRECTLY UPON THE HEALTH, SAFETY AND WELFARE OF THE CITIZENRY. BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That Article II, Right -of -Way Management, of Chapter 26, Rights -of -Way, of the City of Pearland Code of Ordinances, is hereby amended to read as follows: "ARTICLE II. RIGHT-OF-WAY MANAGEMENT" DIVISION I. GENERAL PROVISIONS Section 1. Title. This article may be known and cited as the Right -of -Way Management Ordinance for the City of Pearland, Texas. Section 2. Construction; governing law; venue. This article shall be construed under and in accordance with the laws of the State of Texas and the City Charter and City Code to the extent that such Charter and City Code are not in conflict with or in violation of the Constitution and laws of the United States or the State of Texas. All obligations of the parties hereunder are performable in Brazoria, Harris, and Fort Bend Counties, Texas. Section 3. Scope. This article shall be effective within the geographical limits of the city, including any areas subsequently annexed by the city. ORDINANCE NO. 669-3 Section 4. Definitions. Street or public way or public right-of-way or public rights -of -way or rights -of -way or right-of-way means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, waterway, or utility easement in which the municipality has an interest. The term does not include the airwaves above a right-of-way with regard to wireless telecommunications. Section 5. Criminal penalties. Any violation or failure to abide by, and comply with, any provision or requirement of this Ordinance shall be a violation of city ordinance, and shall be punished as a Class C misdemeanor, subject to a sum not to exceed two thousand dollars ($2,000.00) per occurrence, unless otherwise provided by state law. Each day upon which there exists a violation of this article, or a failure to abide by, or comply with, any provision or requirement of this article, shall constitute a separate occurrence, and may subject the offender to separate criminal penalties. Prosecution pursuant to this section is in addition to and does not supplant other remedies. With the exception of any actions requiring authorization, franchises, licenses or permits (including permits issued before actual use of the right-of-way), it shall be an affirmative defense that notice of the violation of this article and forty-five (45) days to correct the violation was not given to the offender. Section 6. Civil penalties. (a) Civil penalties may be imposed for the violation of any provision of this article, as follows: (1) Up to one thousand dollars ($1,000.00) for each violation, and each day of a continuing violation may be considered a new violation; and/or (2) If applicable, default and revocation of any or all permits granted to allow work in the rights -of -way, subject to the procedural guidelines noted in this article and any agreement which applies to the right-of-way user, and further subject to any limitations imposed by federal or state law. (b) In imposing the penalties and the amount, the city may weigh all applicable factors, such as damages caused by the violation, reasons for the violation, the seriousness of the violation, and all other factors. 2 ORDINANCE NO. 669-3 (c) Monetary civil penalties and damages may be imposed in the manner prescribed by either local or state law, and the City Attorney is hereby authorized to take all necessary steps to collect any penalties or damages provided herein. (d) In addition, the city council may order specific performance of any actions required by this article or required by a franchise, license or permit, including the permit authorizing work to be performed in the right-of-way, or any other agreement or authorization. Section 7. Right-of-way Construction. No person shall commence or continue with the construction or installation of facilities within the right-of-way of the city except as provided by the ordinances of the city and the directives of the public works department. Section 8. Registration and Construction Permits. (a) Registration In order to protect the public health, safety, and welfare, all users of the right-of-way must register with the City of Pearland. Registration and permits will be issued in the name of the person who will own the facilities. Registration shall include: (1) the name of the user of the right-of-way; (2) the name, address, and telephone number of people who will be contact person(s) for the user; (3) the name(s) and telephone number of an emergency contact who shall be available 24 hours a day. (b) Construction Permits. (1) No person shall perform any construction or installation of facilities in the right-of-way without first obtaining a construction permit, except as provided herein. The permit will be in the name of the person who will own the facilities to be constructed. The permit must be completed and signed by a representative of the owner of the facilities to be constructed. 3 ORDINANCE NO. 669-3 (i) Emergency responses related to existing facilities may be undertaken without first obtaining a permit; however, the public works department must be notified in writing within two (2) business days of any construction related to an emergency response. A reasonably detailed description of the work performed in the right-of-way and an updated map of any facilities moved shall be provided as soon as practicable. (ii) The phrase "construction or installation of facilities" does not include the installation of facilities necessary to initiate service to a customer's property or the repair or maintenance of existing facilities unless such repair or maintenance requires the breaking of pavement, excavation in the right-of-way, or the closure of a public traffic lane for greater than two (2) hours. (2) The permit shall state to whom it is issued, location of work, location of facilities, estimated dates and times the work is to take place and any other conditions set out by the director of public works or his/her designee. (3) The person requesting a permit will provide the director of public works or his/her designee with documentation describing: (i) The proposed, approximate location and route of all facilities to be constructed or installed and the applicant=s plan for right-of-way construction. (ii) Engineering plans provided on a drawing scale not smaller than one inch (1") equals one hundred feet (100') unless otherwise approved by public works department. (iii) Description of all existing public and private utilities in close proximity to applicant's proposed route. (iv) Description of the applicant's proposed installation, such as pipe size, number of interducts, valves, etc. (v) Description of plans to remove and replace pavement or drainage works in streets. Plans submitted must conform to City of Pearland standard construction requirements. 4 ORDINANCE NO. 669-3 (vi) Drawings of any bores, trenches, handholes, manholes, switch gear, transformers, pedestals, etc. including depth. (vii) Manholes of the type applicant plans to use or access. (viii) Complete legend of drawings submitted by applicant, which may be provided by reference to previously submitted documents. (ix) Three sets of engineering plans must be submitted with permit application. (x) The construction and installation methods to be employed for the protection of existing structures, fixtures, and facilities within or adjacent to the right-of-way, and the estimated dates and times work will occur, all of which (methods, dates, times, etc.) are subject to approval of the director of public works or his/her designee; and (xi) Proof of insurance or net worth as required. (4) All construction and installation in the right-of-way shall be in accordance with the permit for the facilities. The director of public works or his/her designee shall be provided access to the work and to such further information as may reasonably be required to ensure compliance with the permit. (5) A copy of the construction permit and approved engineering plans shall be maintained at the construction site and made available for inspection by the director of public works or his/her designee at all times when construction or installation work is occurring. (6) All construction or installation work authorized by permit must be completed in the time specified in the construction permit. If the work cannot be completed in the specified time periods, the permittee may request an extension from the director of public works or his/her designee. (7) Insurance and Bonds (a) An applicant must provide proof of liability insurance in the amount of one million dollars ($1,000,000.00), as approved by the director of public works or his/her designee. Such requirements may be waived by the director of public works or his/her designee, if the applicant 5 ORDINANCE NO. 669-3 provides acceptable evidence of self-insurance backed by assets equal to but not less than a net worth in the amount of at least five million dollars ($5,000,000.00) as approved by the director of public works or his/her designee and the director of financial services or his/her designee. (b) The coverage provided shall be on an "occurrence" basis and shall include coverage for personal injury, contractual liability, premises liability, medical damages, underground, explosion, and collapse hazards. (c) Each policy must include a cancellation provision in which the insurance company is required to notify the city in writing not fewer than thirty days before canceling, failing to renew, or reducing policy limits. (d) The applicant shall file the required original certificate of insurance prior to any commencement of work. The certificate shall state the policy number; name of the insurance company; name and address of the agent or authorized representative of the insurance company; name, address and telephone number of insured; policy expiration date; and specific coverage amounts. (e) Applicant shall file a surety bond from a surety company authorized to do business in the State of Texas in the amount of $15,000.00 to guarantee the restoration of the right-of-way in the event the applicant leaves a job site in the right-of-way unfinished, incomplete, or unsafe. Such requirement for a surety bond may be waived by the director of public works or his/her designee upon a showing of financial responsibility by the applicant. (8) A request for a permit must be submitted at least five (5) working days before the commencement of work proposed in the request, unless waived by the director of public works or his/her designee. (9) Requests for permits shall be approved or disapproved by the director of public works or his/her designee within a reasonable time of receiving all the necessary information. The director of public works or his/her designee shall use his/her best efforts to approve or disapprove a request for permit as soon as possible. (10) The public works department may request a pre -construction meeting with the permittee and their construction contractor. 6 ORDINANCE NO. 669-3 Section 9. Construction standards. (a) Department of public works shall be notified twenty-four (24) hours in advance that construction is ready to proceed by either the right-of-way user, their contractor or representative, including the name, address, and phone numbers of the contractor performing the actual construction, and the name and telephone number of the individual who will be available at all times during construction. Failure to provide the above information will result in the suspension of the permit until the required information is received. (b) All construction shall be in conformance with all city codes and applicable local, state, and federal laws. (c) Erosion control measures (i.e., silt fence) and advance warning signs, markers, cones, and barricades must be in place before work begins. (d) Permittee may be required to show proof of EPA approved plans relating to storm water and erosion when applicable or a letter stating such plans are not required. (e) Lane closures on collectors and thoroughfares, as identified by the City=s thoroughfare plan, is limited to after 8:30 a.m. and before 4:00 p.m. unless the public works department grants prior approval. Arrow boards will be required on lane closures, with all barricades, advanced warning signs and 36 inch reflector cones placed according to the specifications of the public works department. (f) (g) Permittees are responsible for the workmanship and any damages caused by a contractor or subcontractor. A responsible representative of the permittee will be available to public works at all times during construction. Permittee shall comply with city, state, and federal guidelines regulating storm water management erosion control. Requirements shall include, but not be limited to, silt fencing around any excavation that will be left overnight, silt fencing in erosion areas until reasonable vegetation is established, barricade fencing around open holes, and high erosion areas will require wire backed silt fencing, or straw bales, as appropriate. (h) Permittee or contractor or subcontractor shall notify the public works department immediately of any damage to other utilities, either city or privately owned. 7 (I) ORDINANCE NO. 669-3 (i) (i) Except in the event of an emergency, prior approval must be obtained from the public works department when a street or sidewalk cut is required and all requirements of the public works department shall be followed. Repair of all street and sidewalk removals shall be made promptly to avoid safety hazards to vehicle and pedestrian traffic. Newly installed facilities shall not interfere with facilities of other users, in particular gravity dependent facilities. (k) Facilities shall be installed at a minimum of two (2) feet depth, unless approved by the public works department. All directional boring shall have locators place bore marks and depths while the bore is in progress. Locators shall place a mark on every other stem with paint dots. (m) Except in the event of an emergency, working hours in the rights -of -way are 7:00 a.m. to 7:00 p.m., Monday through Saturday. Work that needs to be performed after 7:00 p.m. Monday through Saturday must be approved in advance. Except in the event of an emergency, any work performed on Sunday must be approved twenty-four (24) hours in advance by the public works department. Directional boring is permitted only Monday through Friday, unless approved in advance. Section 10. "Plans of Record" Plans. Right-of-way users shall provide the public works director or his/her designee with "plans of record" within ten days of completion of facilities in the right-of-way. Users which have facilities in the right-of-way existing as of the date of this ordinance who have not provided "plans of record" plans shall do so not later than thirty (30) days after the passage of this ordinance. The plans shall be provided to the city in the format specified by the public works director or his/her designee. Submittal of "plans of record" should be in digital formatting as well as written or in any other format requested by the public works department. The requirement to provide "plans of record" may be waived by the director of public works upon a showing of good cause. Section 11. Facility Locates and Conformance with Public Improvements. Prior to initiating construction of a City project in the right-of-way, the City will provide each right-of-way user preliminary project plans at various stages of completion (i.e., 30% plans, 60% plans, 90% plans and final plans). Upon receipt of the first submittal of preliminary project plans (30% plans), each right-of-way user shall be responsible for 8 ORDINANCE NO. 669-3 verifying the locates of its underground facilities in the vicinity of the City's project. In verifying the location of facilities as required by this Section, each right-of-way user shall compile the information obtained regarding any facilities located in the right-of-way that are potentially affected by the City project and shall, within thirty (30) days of receipt of the first submittal of the preliminary project plans, make that information available to the City in a written and verified format acceptable to the City's Project Director or his/her designee. Whenever by reasons of widening or straightening of streets, water or sewer line projects, or any other public works projects (i.e., install or improve storm drains, water lines, sewer lines) it shall be deemed necessary by the governing body of the city to remove, alter, change, adapt, or conform the underground or overhead facilities of a right-of-way user, such alterations shall be made by the owner of the facilities at the owner's expense within forty five (45) calendar days from the receipt of written notice to make the alterations, unless a different schedule has been approved by the Project Director or his/her designee. The owner of the facilities shall be responsible for any direct costs incurred by the City, associated with project delays resulting from owner's failure to conform facilities within the time limits established by this Section. Reimbursement for all costs provided for by this paragraph shall be made within thirty (30) calendar days from the day which the owner receives written notice of such costs. Section 12. Improperly Installed Facilities. (a) Any person doing work in the city right-of-way shall properly install, repair, upgrade, and maintain facilities. (b) Facilities shall be considered to be improperly installed, repaired, upgraded, or maintained if: (1) the installation, repairs, upgrade, or maintenance endangers people; (2) the facilities do not meet the applicable city codes; (3) the facilities are not capable of being located using standard practices; or (4) the facilities are not located in the proper place in accordance with the plans approved by the public works department. (c) This section shall not apply to facilities installed prior to the effective date of this ordinance unless such facilities are repaired or upgraded. (d) When poles are used, the type of poles, location, depth, upgrades, etc. shall be subject to review of the public works department. 9 ORDINANCE NO. 669-3 Section 13. Restoration of Property. (a) Users of the right-of-way shall restore property affected by construction of facilities to a condition that is equal to or better than the condition of the property prior to the performance of the work. (b) This includes, but is not limited to, replacing all natural ground cover with an equal or better type of ground cover damaged during work, either by sodding or seeding, as directed by public works. (c) Restoration shall be to the reasonable satisfaction of the public works department. The restoration shall include, but not be limited to: (1) Installation of all manholes and handholes, as required; (2) All bore pits, potholes, trenches, or any other holes shall be covered or barricaded daily; (3) Leveling of all trenches and backhoe lines; (4) Restoration of excavation site to city specifications. (d) All locator flags shall be removed during the cleanup process by the permittee or his/her contractor at the completion of the work. Section 14. Revocation or Denial of Permit. If any provisions of this ordinance are not followed, a permit may be revoked by the public works director or designee. If a person or persons fails to follow the terms and conditions of this ordinance in work done pursuant to a prior permit, new permits may be denied or additional terms required. Section 15. Conflicts with Existing Franchises. If a provision of this article directly conflicts with a provision of a franchise or written authorization from the city in effect on the effective date of this ordinance, the franchise provision will be followed until such time that the franchise or written authorization expires or is terminated." 10 ORDINANCE NO. 669-3 Section 2. Declaration of Emergency. The City Council hereby declares that a public emergency exists, as the need to regulate the City's rights -of -way bears directly upon the health, safety and welfare of the citizenry; and that this Ordinance shall be adopted as an emergency measure, and that the rule requiring this Ordinance to be read on two (2) separate occasions be, and the same is hereby waived. Section 3. Repealer. All ordinances and parts of ordinances in conflict herewith are hereby repealed but only to the extent of such conflict. Section 4. Penalty. Any person who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and shall, upon conviction by a court of competent jurisdiction, be punished by a fine in any sum not exceeding Five Hundred Dollars ($500.00). Section 5. Savings. All rights and remedies which have accrued in favor of the City under this Chapter and amendments thereto shall be and are preserved for the benefit of the City. Section 6. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid, unconstitutional or otherwise unenforceable by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions thereof. 11 ORDINANCE NO. 669-3 Section 7. Codification. It is the intent of the City Council of the City of Pearland, Texas, that the provisions of this Ordinance shall be codified in the City's official Code of Ordinances as provided hereinabove. Section 8. Publication and Effective Date. The City Secretary shall cause this Ordinance, or its caption and penalty, to be published in the official newspaper of the City of Pearland, upon passage of such Ordinance. The Ordinance shall then become effective ten (10) days from and after its publication, or the publication of its caption and penalty, in the official City newspaper. PASSED and APPROVED on First and Only Reading this the 13th day of June , A.D., 2005. ATTEST: UN I��.,T'MC IITY - ECRE RY APPROVED AS TO FORM DARRIN M. COKER CITY ATTORNEY 12 TOM REID MAYOR VOTING RECORD FIRST AND ONLY READING June 13, 2005 Voting "Aye" - Councilmembers Tetens,Owens, Cole, Marcott, and Viktorin. Voting "No" — None Motion passes 5 to 0. PUBLICATION DATE: June 15, 2005 EFFECTIVE DATE: June 25, 2005 PUBLISHED AS REQUIRED BY SECTION 3.10 OF THE CHARTER OF THE CITY OF PEARLAND, TEXAS Ord utQ9-5 AFFIDAVIT OF PUBLICATION The Pearland Reporter News 2404 South Park Pearland, Texas 77581 State of Texas Brazoria and Harris Counties I, LIoyd Morrow, hereby certify that the notice hereby appended was published in THE REPORTER NEWS, a newspaper of general circulation in Brazoria, Harris and Galveston Counties, for % issues, as follows: No. / Date 6-7c 20 C 5- No Date 20 No. Date 20 No. Date 20 No. Date 20 Subscribe and sworn to before me this /_ 20 O . •. ..• •. . ••.•:... •'• • • • • • �.y•••.••s•••tAl ••i.•-•'..a"R•�'! ••••:•t••••.•••• LAURA ANN EMMONS Notary Public, State of Texas Commission Expires 09-09-2006 1- i • • • • • 10. day of Laura Ann Emmons, Publisher Notary Public, State of Texas Published June 15, 2005 ORDINANCE NO. 669-3 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AMENDING ARTI- CLE II, RIGHT-OF-WAY MANAGEMENT, OF CHAPTER 26, RIGHTS - OF -WAY, OF THE CITY OF PEARLAND CODE OF ORDINANCES, AS IT MAY HAVE BEEN, FROM TIME TO TIME, AMENDED; PROVIDING A PENALTY FOR VIOLATION; HAVING A SAVINGS CLAUSE, A SEVERABILITY CLAUSE, AND A REPEALER CLAUSE; PROVIDING FOR CODIFICATION, PUBLICATION AND AN EFFECTIVE DATE; AND DECLARING AN EMER- GENCY AS THE NEED TO REGULATE THE CITY=S RIGHTS -OF -WAY INURES TO THE BENEFIT OF THE PUBLIC AND, THERE- FORE, BEARS DIRECTLY UPON THE HEALTH, SAFETY AND WELFARE OF THE CITIZENRY. Section 4. Penalty. Any person who shall violate the provisions of this section shall be deemed guilty of a misdemeanor and shall, upon conviction by a court of competent jurisdiction, be punished by a fine in any sum not exceeding Five Hundred Dollars ($500.00). PASSED and APPROVED on First and Only Reading this the 13th day of June, A.D., 2005. /s/ Torn Reid Mayor ATTEST: /s/ Young Lorfing, TRMC City Secretary APPROVED AS TO FORM: /s/ Darrin M. Coker City Attorney VOTING RECORD SEC- OND AND FINAL READING JUNE 13, 2005 Voting "Aye" • Councilmem- bers Tetens, Owens, Cole, Marcott and Viktorin. Voting "No" - None. Motion passed 5 to 0. PUBLICATION DATE: JUNE 15, 2005 EFFECTIVE DATE: JUNE 25, 2005 PUBLISHED AS RE- QUIRED BY SECTION 3.10 OF THE CHARTER OF THE CITY OF PEARL] ND TEXAS.